Questions & Answers:
If I walk by an employee's desk and saw them on Facebook, along with some inappropriate pictures. What can I do? Should I pretend I did not see it?
When you say “inappropriate” if you mean it is something that would violate the company’s harassment policy, you should handle it the same way you would handle it if the pictures were laying on the employee’s desk. You should conduct an investigation and follow your procedures in a consistent fashion. If you chose instead not to act on it, your inaction could later be viewed as tolerance of that type of conduct and could possibly find its way into evidence in a hostile work environment claim against the company in the future. Also remember that the employer has a duty to correct harassment that is clearly unwelcome regardless of whether a complaint is filed. Similar to anonymous graffiti – If there is graffiti found in the workplace containing racial or sexual epithets, management should not wait for a complaint before erasing it.
Does FCRA apply if you don't have a 3rd party do a search but someone from your organization goes onto job candidates sites before you hire them? Also, what about an employer going onto existing employees sites such as FB, Twitter etc?
No. The FCRA applies when an employer obtains background information on an individual from a third party to make employment-related decisions and the third party is a “consumer reporting agency.” A “consumer reporting agency” is defined as any person or entity who regularly engages in the practice of assembling or evaluating information on individuals for the purpose of providing reports to third parties. According to this definition, the FCRA does not apply to an employer that conducts checks for itself. The problem that you run into if you don’t have a third party conducting the review is that you can open yourself up to liability for being accused of using protected class information discovered during your social media review. Once you see this protected class content, you cannot unsee it.
Please clarify "shoulder surfing"
The term “shoulder surfing” is where employers stop just short of asking for applicants’ passwords and, instead, ask applicants to log into their profiles and click through private messages, photos, wall posts, and other items as the interviewer watches. As such, state have begun enacting laws prohibiting this practice of employers requiring employees or applicants to access their personal social media accounts in the presence of the employer.
Can an employee point towards another employee's private social media use that the employer is not aware of as evidence of a hostile work environment?
Yes, we actually see this happen a lot. If the employee did not bring a print out of the offending social media, the company should check if the post is publically available, if it is there is no expectation of privacy. Once the offending post is brought to the company’s attention, it is up to the company to respond and follow its investigation procedures.
Do social media companies have any legal obligation to provide deleted posts that are relevant to a legal issue?
They might, that is a good question. They wouldn’t necessarily be a party to the case and may have to be subpoenaed. Please reach out to Taylor for more information if you have a specific instance where this has become an issue for your company. firstname.lastname@example.org
If I don't have a copy of the FB post or a tweet for an investigation, what's the right approach? Do I ask another employee who's connected to the employee being investigated?
Assuming your investigation is in regard to an allegation of harassment or discrimination. First, try your best to see if the alleged post is publicly available because there is no expectation of privacy. If the post is not publicly available and the person complaining about the post didn’t save it, then you should still investigate the conduct to the extent possible, treating it like any other harassment complaint. This might mean meeting with the alleged harasser and asking them directly about it based on a complaint you received. Think about if it had allegedly occurred face-to-face, rather than on the internet, an employee doesn’t always bring you an audio recording of the alleged harassment that he/she experienced, but we still investigate and take action when the allegation can be substantiated by other means (i.e., witness interviews). The same principals apply to complaints involving social media. The employer’s obligation to prevent and correct harassment relates to the work environment. If you’re not able to substantiate an allegation of harassment, it may still be a good idea to a hold a harassment-refresher training to prove that you took some action. (also remember to take and keep good notes of everything you did!)
is it legal to have one employee post wage information on another employee's "position"? And we only have one person in that position in our company.
If you are asking whether it’s legally permissible for one employee to post wage information about another employee’s position, then the answer is yes. If you are asking if there is anything you can (lawfully) do to prevent the employee from doing this, probably not -- because Section 7 of the NLRA protects employee’s right to engage in “concerted protected activity,” and wage and compensation discussions online or in person are generally viewed as protected activity.
what if there is a compelling security reason for not allowing employees to use social media on their rest break? For example, close work or proximity with sensitive data.
Generally, when an employee is on their rest break, especially unpaid lunch breaks, they should be relieved of any and all job duties. In the question you pose, it appears your issue is whether you can prohibit personal social media use during such breaks. If the employees remain in the work area for such breaks your security concerns would likely control and you could prohibit such activity.